A MORAL JUDGEMENT

In an excellent piece of journalism, Stuff’s Nikki Macdonald reported on how a fervent Otago Catholic, Jack Enright, died and in his will he cut out five of his six children for deserting the faith. Enright had obviously worked hard, building an estate through a Trust valued at $11.5million.

The High Court has now awarded the five ostracised claimants a relatively small share of the estate based on income earned over a period, on grounds the report did not adequately explain, but it largely rejected the capital claim.

But here’s the bit that’s interesting. Under cross-examination Jack Enright’s lawyer and trustee of his Trust, Eric Thomson, said, “I consider Jack by his tireless efforts had earned the moral right to make that decision”. Dead bloody right!

Morality, a much mis-used word, is always by definition a personal judgement. No matter the hurt, the owner and creator of wealth should be the sole determinant of what happens to his or her estate. Yet seemingly daily we read reports of Court challenges to someone’s will.

Four years ago Auckland QC Deborah Chambers hit the news for precisely this. Both she and her husband, a High Court judge, had written a clear-cut will in which they agreed to pool their estate and that the surviving partner would have the sole use of it until he or she died. At that juncture it was to be divided equally between their respective (by previous marriages), four children. The judge, Sir Robert Chambers, died suddenly whereupon one of his sons sued for his $2.5m whack now. He lost on the grounds he was financially comfortable. Why is that relevant? Because as Deborah Chambers pointed out, our laws on this issue are confusing.

The 1995 Family Protection Act basically gave Courts authority to interfere where widows and young children are left destitute. Few would argue with that.

This was reviewed by the Law Commission in 1997 which recommended removing the right of adult children to challenge wills, regardless of their circumstances. Unfortunately this was ignored. Thus our Courts, as elsewhere, are clogged with costly will-challenging disputes producing erratic responses.

A common one is challenging wills leaving everything or most of an estate to charities. Further, we often read of cases abroad where Dad has left the lot to a tart who probably brought him more joy in his dotage than his kids ever did, or where Mum has allegedly been manipulated by a toyboy.

As said, the Family Protection Act covers the legal right of dependents for “proper maintenance and support”, known as a will-maker’s “moral duty”. Once again this is an abuse of the language as no legislator can determine an individual’s morality judgements for as I said, by definition these are always personal.

Court cases such as these are lengthy and a huge burden on the taxpayer. They put pressure on Judges to make tricky decisions.

The solution is simple. Redraw the legislation to cover dependent spouses and children left with no means of support and cut out the right of adults, regardless of their circumstances, to challenge wills. If the deceased wants to leave the lot to the SPCA, then so be it.